Standing Committee A

[Mr. James Cran in the Chair]

Mental Capacity Bill

Clause 36 - Duty of NHS body to seek advice before providing accommodation

Amendments made: No. 226, in 
clause 36, page 20, line 29, at end insert— 
 '( ) But this section does not apply if P is accommodated as a result of an obligation imposed on him under the Mental Health Act.'.
 No. 227, in 
clause 36, page 20, line 31, after 'interests', insert 
 'and, in particular, as to the matters mentioned in section 4(5)'.—[Ms Rosie Winterton.]

Rosie Winterton: I beg to move amendment No. 228, in
clause 36, page 20, line 32, leave out 
 'of less than 28 days' 
 and insert 
 'which is less than the applicable period'.

James Cran: With this it will be convenient to discuss Government amendments Nos. 229, 230 and 234.

Rosie Winterton: Clause 36 deals with the duty of a national health service body to seek the advice of the independent consultee when it proposes to move an unbefriended person who lacks capacity into or between a hospital or care home. Clause 37 places a similar duty on local authorities.
 Amendments Nos. 228 and 230 have been introduced to clarify the fact that all unbefriended people without capacity who move into care homes or residential accommodation arranged or funded by either the NHS or local authorities will have access to an independent consultee after eight weeks. 
 Clause 36(2) provides that the independent consultee safeguard applies unless the accommodation arranged or provided by the NHS is likely to be for a continuous period of less than 28 days. That includes accommodation in either a hospital or a care home. Under clause 37, which deals with accommodation provided by local authorities, the safeguard applies after eight weeks' residential accommodation. That means that we have two different time periods for people who may be in the same accommodation. 
 Two identical patients could end up in residential care homes, one placed by an NHS body and one placed by a local authority. One would have an independent consultee if the period was expected to be more than 28 days, whereas the other would have an independent consultee only if the period was more 
 than eight weeks. We cannot justify that distinction. The amendments therefore bring the time limit under clause 36 in line with clause 37 for all people in care homes or residential accommodation. The time limit will remain at 28 days for people in hospitals.

Tim Boswell: I am grateful to the Minister for explaining the amendments so clearly. Will she clarify the position on assessments, either now or later in our discussions? The duties imposed under clauses 36 and 37 are about seeking advice, but I take it that they do not cut across the professional duty of the NHS body or the local authority to seek professional assessment of the person's condition before even suggesting a placement.

Rosie Winterton: I can give the hon. Gentleman that assurance. We will also be considering annual reviews of accommodation.
 Government amendments Nos. 229 and 234 ensure that all unbefriended people without capacity who move into hospitals or residential accommodation arranged or funded by the NHS or local authorities will have access to an independent consultee as soon as it becomes apparent that they are likely to be accommodated for longer than 28 days or eight weeks. When deciding on care arrangements, a health or social care professional may well consider at the start that the likely stay will be less than 28 days or eight weeks, but the period may turn out to be much longer. Under the Bill as drafted, P would not have the benefit of the independent consultee. The two amendments will put that right. I hope the Committee accepts them. 
 Amendment agreed to. 
 Amendments made: No. 229, in 
clause 36, page 20, line 34, at end insert— 
 '( ) If the NHS body— 
 (a) did not seek advice from an independent consultee before making the arrangements because it was satisfied that subsection (2)(a) or (b) applied, but 
 (b) subsequently has reason to believe that the accommodation is likely to be provided for a continuous period— 
 (i) beginning with the day on which accommodation was first provided in accordance with the arrangements, and 
 (ii) ending on or after the expiry of the applicable period, 
 it must seek advice from an independent consultee.'.
 No. 230, in 
clause 36, page 21, line 4, at end insert— 
 '( ) ''Applicable period'' means— 
 (a) in relation to accommodation in a hospital, 28 days, and 
 (b) in relation to accommodation in a care home, 8 weeks.'.—[Ms Rosie Winterton.]
 Question proposed, That the clause, as amended, stand part of the Bill.

James Cran: With this it will be convenient to take the following: New clause 22—Right to an advocate in connection with the provision of accommodation—
'(1) The specified circumstances in which independent advocacy must be made available shall include consideration of a major change in a person's accommodation and or support where the accommodation on support is to be paid for in whole or in part from public funds, or would be but for the fact the person's resources 
exceeds those set in regulations under section 22 National Assistance Act 1948 and where it appears to the relevant authority that P may lack capacity in relation to that major change in P's accommodation and/or support arrangements. 
 (2) A major change for the purposes of this section means any change 
 (a) to accommodation for a continuous period intended to or likely to exceed 28 days, or 
 (b) any new contractual arrangements for providing support, for a person who lacks capacity to agree to the changes, where the accommodation or support is to be paid for in whole or in part from public funds or 
 (c) where the arrangements need to be made a matter of urgency. 
 (3) Any NHS body or local authority must seek and take into account representations from in independent advocate if it is liable to provide an assessment or assessments under any of the following for the person P where it appears to the relevant authority that P may lack capacity in relation to specific matters connected to that assessment or assessments: 
 (a) section 47 NHS and Community Care Act 1990 (and for the avoidance of doubt this includes those assessments under section 3 of the Community Care (Delayed Discharges etc) Act 2003, 
 (b) section 117 Mental Health Act 1983, 
 (c) section 1 and section 5 Carers and Disabled Children Act 2000, 
 (d) assessment under the Continuing Care (National Health Service Responsibilities) Directions 2004 or Delayed Discharge (Continuing Care) Directions 2004 
 (e) any assessment for services which fall within the functions of a local housing authority (within the meaning of the Housing Act 1985) or any assessment for support under the Supporting People (England) Directions 2003, the Supporting People Grant (England) Guidance 2003 or assessment for charges under the Local Authorities (charges for Specified Welfare Services) (England) Regulations 2003 or 
 (f) any care planning for in-patient care, care following discharge or continuing care under the Care Programme Approach. 
 (4) Where emergency accommodation and support arrangements have to be made, these arrangements shall be reviewed as soon as possible, taking account of representations made by the independent advocate. 
 (5) ''NHS body'' has such meaning as may be prescribed by regulations made for the purposes of this section by 
 (a) the Secretary of State, in relation to bodies in England, or 
 (b) the National Assembly for Wales, in relation to bodies in Wales.'.
 New clause 25—Duty on public body to assess capacity— 
'(1) Where it appears to the relevant authority that a person (''P)'' may lack capacity in relation to matters connected to— 
 (a) the assessment of P's needs for services which may be provided or arranged by the relevant authority (''assessment of needs'') or 
 (b) the provision of services to P which may be provided or arranged by the relevant authority (''service provision decision'') 
 no part of this Act will authorise a person to do an act connected with the assessment of needs or service provision decision unless the steps set out in subsection (3) are followed. 
 (2) For the purpose of subsection (1) and (3) a ''relevant authority'' means either— 
 (a) a local authority exercising functions under section 47 of the National Health Service and Community Care Act 1990, 
 (b) a local housing authority within the meaning of the Housing Act 1985, or 
 (c) a Health Authority, Health Board, Special Health Authority, Primary Care Trust or National Health Service trust. 
 (3) The relevant authority must:— 
 (a) make arrangements for P's capacity, in relation to the matter in question, to be assessed; 
 (b) notify P of the help available from, and assist P (if P so requires in contacting, an independent advocate under the arrangements under section 34, (such help may include assisting P in communicating his views); 
 (c) consider whether P requires any additional assistance in communicating his views (whether by talking, using sign language or other means); and 
 (d) where P has been assessed to lack capacity in relation to the matter in question, to make such enquiries as are necessary to be satisfied that the matter does not fall within the scope of the authority of— 
 (i) a donee of a Lasting Power of Attorney granted by P, 
 (ii) a deputy appointed by the court, or 
 (iii) an advance decision to refuse treatment (where treatment is being considered). 
 (4) In carrying out an assessment under (3)(a) the relevant authority must take into account the views of: 
 (a) P with or without the assistance of an independent advocate providing support in accordance with subsection (3)(b), and 
 (b) anyone named by P as someone to be consulted on the matter in question or on matters of that kind, and 
 (c) people who are, or are likely to be, responsible for the provision of care or treatment to P in a professional capacity, and 
 (d) if it is practicable and appropriate to consult with them, any other person engaged in caring for P, whether or not in a professional capacity.'.

Joan Humble: I rise to welcome the fact that clause 37 will introduce a new duty on local authorities to seek advice before providing accommodation. The whole thrust of the legislation is about seeking advice, consultation and so on, but certain organisations that represent people with disabilities still have concerns. My right hon. Friend the Member for Coatbridge and Chryston (Mr. Clarke) has tabled two new clauses and I want to speak to them briefly. We have had a discussion—he sends his apologies that he cannot be here today—so, on his behalf and with some guidance from Mencap, I shall make one or two comments.
 First, new clause 22 is about the right to have an independent advocate in connection with the provision of accommodation. We have had a lot of debates about independent consultees and independent advocates. My hon. Friend the Minister will not be surprised that I prefer the role of an advocate, but I recognise the role that she has inserted in the Bill for independent consultees. 
 Clause 37 states that a local authority must seek advice from an independent consultee as to P's best interests when providing accommodation. However, it makes no provision for when in the decision-making process a local authority should seek that advice. As mentioned in earlier discussions, getting in at the start of the process can be absolutely vital. If independent advocates or consultees do not get in at an early stage, either the decision is a fait accompli or there is conflict about it as people have reached entrenched positions. 
 My right hon. Friend's new clause 22 spells out more clearly the appropriate trigger points for when 
 an independent advocate should be brought into the decision-making process—namely, at the point at which the assessment or assessments are made. That would include a community care assessment or review under section 47 of the National Health Service and Community Care Act 1990, an assessment under the supporting people provisions, an assessment regarding aftercare under section 117 of the Mental Health Act 1983 or a care programme approach, if that is being used on discharge from a psychiatric hospital. 
 New clause 25 would establish a duty on a public body to assess a person's capacity whenever that was in doubt before making an assessment of that person's need for health or social care or housing, or for the provision of those services. The Bill starts off presuming capacity, but as has been pointed out on several occasions in debates in Committee and on Second Reading, we need a culture change. Sadly, all too often, social care professionals and others who make decisions on behalf of individuals with a variety of disabilities tend to assume incapacity rather than capacity. However, we are trying to make the issue of capacity absolutely central through this legislation, so new clause 25 has been suggested to ensure that the examination of capacity must be undertaken before any decision is made. 
 Sadly, I meet all too many people who assume that because an individual is incapable of making one decision, they are incapable of making all decisions. Sometimes it is just easier to jump in and say, ''This is what we're going to do on your behalf.'' Decisions about accommodation can be vital to a person's well-being, yet sometimes decision makers will leap in and assume that a person is not capable of making a choice. The decision might be complex, but the person ought to be involved nevertheless. The new clause provides that those helping to support a person must actively ensure whether a person has the capacity to be involved in decision making and that they are actively involved in it. 
 The authority given in the new clause would require the local authority to assess a person's capacity in relation to the matter in question. I am sure that the Minister will say that that is implicit in the Bill, but sometimes such things need to be specified. The local authority would be required to inform the person that help was available from an independent advocate. The Minister knows that I think independent advocacy services should be available to people who need them. The local authority would also have to consider whether the person had any communication needs and would have to make the necessary inquiries to be satisfied that the person did not have the authority to make such decisions, or that the situation was not covered by an advance refusal of treatment. 
 The new clause is essentially about changing attitudes by setting a minimum standard that all authorities would have to meet when undertaking an assessment for capacity. It would turn P from the passive recipient of service to an active participant and decision maker, which is surely the thrust of the legislation. If we specify that in the new clause, we will make our intention absolutely clear and say what we want to get from the Bill.

Tim Boswell: Briefly, I am delighted that the hon. Lady has spoken to the new clauses tabled by the right hon. Member for Coatbridge and Chryston and it is right to pause for a moment to consider them. I do not intend to reopen the issue of advocacy. That is in no sense to suggest that it has gone away, but at this stage it may not be appropriate to add much to what has been said. However, I would like to talk a little about the process of assessment set out in new clause 25.
 The Minister has perhaps already noticed—I trailed this in my intervention—that the formal position is to say that local authorities are of course responsible for their professional assessments. I anticipate a response to this point. As I said right at the beginning of deliberations in Committee, under the Bill—I am adding this point to what she may want to say—the process of assessing an individual's mental capacity or otherwise must effectively be continuous for the person with care of that individual, because mental capacity is deemed to be functional and it may fluctuate or return. 
 It is strictly unprofessional not to consider capacity moment by moment. To put it another way, a decision made at any one time could be challenged in court if the person had returned to mental capacity and if the NHS body—or, in the case of clause 37, the local authority—did not take that into account. So, there is a very heavy test that requires public authorities to do things properly. If we are honest, I suspect that we have fairly strong views that that has not always happened. 
 Most of us, as constituency MPs, become engaged indirectly in tussles over whether local authorities have carried out assessments on appropriate accommodation, let alone—in certain cases, this represents a substitute—carried out the placement. Sometimes, they delay the matter until the last possible moment, or until it is challenged. 
 It is not our purpose to widen this into a general debate on the care system, but I make the point to the Minister that there should be clear understanding among, and guidance to, NHS bodies—and, in relation to the next clause, local authorities—on the general terms of the Bill and on the specific obligation to have regard to both the professional assessment of capacity before organising placements and the independent consultee service, which is a separate wheel on the coach. Those two should not be muddled together. 
 My hon. Friend the Member for Sevenoaks (Mr. Fallon) has raised a point that emerged in correspondence with one of his constituents who is associated with rest care. It relates to village communities, rather than residential or other types of care homes. The Minister will say that that is irrelevant to the clauses because a care home is either registered or not, and we are discussing additional safeguards for those who are placed in care homes. However, it opens the wide issue, already floated in the Committee, about people who are placed in the community or are changing from one private accommodation to another after an assessment that 
 suggests that they would be better off in the community. Whether a care village would be treated as a registered care home or otherwise is relevant. 
 The point is put rather interestingly in the letter. I am not sure that I have local experience of the issue myself, although my hon. Friend clearly does. The letter says: 
''Unfortunately, village communities have been designated unpolitically correct by some local authorities, in the mistaken idea that to be a larger setting than an ordinary house in an ordinary street is somehow shutting the residents away.''
 The writer is making a plea, slightly outside our considerations, that local authorities should bear that point in mind when compiling their assessments.

Paul Burstow: The hon. Gentleman raises an important issue about the establishment of village-type settings for people with severe learning disabilities and about the way in which such people are accommodated and supported. However, does he not agree that the Bill will ensure that they benefit from the rights and protections that it will give anyone who lacks capacity? In some ways, the Bill will ensure that that group is more carefully involved in the decision-making processes of local authorities, health authorities and relatives.

Tim Boswell: Yes, I readily concede that. That is one of the Bill's attractions and I am not seeking to subvert the Bill. In principle, such groups would be brought within the radar screen. We all know that that has not always happened in the past, although it should have done. For the avoidance of doubt, perhaps I should have added that I believe that accommodation is cardinal to the welfare and best interests of persons with learning disabilities. Many of us have interests in that matter.
 I agree that the Bill has strengths. I am saying that under clauses 36 and 37 the accommodation in question is tied to residence in hospital or registered care. We should not shut our minds to the range of opportunities that may be convenient for people. I hope that the assessments carried out by local authorities and NHS bodies and any advice that they may subsequently be required to take from independent consultees are properly weighed and that the right placements are made. I have no ideological view about where the placements should be, and they will vary with the individual. 
 I have a final point about village communities, which was prompted by the intervention of the hon. Member for Sutton and Cheam (Mr. Burstow). It is, in a sense, a rider to new clause 25, which was tabled by the right hon. Member for Coatbridge and Chryston. Subsection (3)(a) of the new clause talks about making an assessment. In keeping with the Bill's spirit of consultation, subsection (4) goes on to say that 
''the relevant authority must take into account the views of:
(a) P . . . 
 (b) anyone named by P as someone to be consulted . . . 
 (c) people who are, or are likely to be, responsible for the provision of care or treatment to P in a professional capacity, and 
 (d) if it is practicable and appropriate to consult with them, any other person engaged in caring for P, whether or not in a professional capacity.''
 The missing link is any reference to other persons who may be neighbours of P or associated with P. One of the attractions of residential care communities, touched on in the letter received by my hon. Friend the Member for Sevenoaks, is that people feel happy living alongside each other because they are friends and have confidence in each other. Those who may have lived as friends and neighbours of P for many years would probably be the right people to consult. 
 Applying that concept to the provisions of the Bill, the duty to seek advice set out in clause 36 is additional to the duty to make a proper assessment. Bearing in mind the principles of the Bill set out in clause 1, and the need to consult under clause 6, for example, we see that it is important that when making a professional assessment, an NHS body or a local authority, particularly when dealing with somebody with learning disabilities who may not have had have full exposure to opportunities to express their views and feelings and may not have had anyone take any notice of them, is able to include the views of any relevant person. That is what the right hon. Member for Coatbridge and Chryston is seeking through his new clause, to which I have added a potential rider. 
 Beyond that, there should be the additional safeguard of the independent consultee process, remembering that the local authority or NHS body still has an obligation to do the right thing for that person, and might have to change that, either on the annual review or if circumstances change. The Committee shares a common view—there is no political difference between us—that the people in question have not been given a fair go in the past for a variety of reasons. Put another way, there is a huge variation in practice, from good to indifferent. I agree with the hon. Member for Sutton and Cheam that one way to deal with the problem is to have the safeguards in the Bill that are already available to people—typically but not exclusively, people with learning disabilities. We also have the code, which we will no doubt touch on later, and NHS bodies and local authorities have professional obligations. All must be applied and be seen to be applied to the best interests of P. If the Minister sticks to that and can give assurances in respect of those concerns it would be helpful to the Committee.

Paul Burstow: I shall start by picking up on something that the hon. Gentleman said, then speak to the new clauses and return to issues around advocacy, which the new clauses provide an opportunity to explore further.
 On the question of care villages, there are questions about what happens when a person with complex multiple learning disabilities is in a long-stay institution and about the nature of the process of deciding how services are to be reprovided. At what point do the Government expect an independent consultee to be brought into that process, which would initially be kicked off by a health body and which would involve assessments, probably by a 
 combination of health and social care professionals. How early in the process would that happen? 
 Also, to what extent can bodies undertaking assessments have regard for their resources when making decisions about the extent to which they will facilitate enabling P to communicate his views, wishes and feelings to an independent consultee or anyone else? How might the Bill affect such reprovisioning? One criticism that I have heard about the reprovisioning of services at St. Ebba's, which is in the constituency of the hon. Member for Epsom and Ewell (Chris Grayling) but at which constituents of mine are resident, has been that the views, wishes and feelings of residents were not adequately assessed and taken into account. Even the relatives felt that they had not been fully engaged. Clearly, the Bill gives new rights to P and P's relatives, such as new abilities to pursue the authorities more vigorously regarding what they believe to be in P's best interests. Will the Minister comment on that?

Ann Winterton: Does not what the hon. Gentleman has just said reinforce the current situation? As long as independent consultees for and relatives of long-term residents in the kind of home that he mentioned represent P to the best of their abilities, P will probably get better service, but will not the process still be resource driven even with the new rights? If the resources are not there, how can the level of care that would be appropriate in an ideal world be provided for those residents?

Paul Burstow: The hon. Lady makes a fair point: we do not live in an ideal world, and we probably never will. Neither will we probably ever have plentiful resources available to meet every need at the right time in the right place. Her point is well made.
 We need to keep pressing the point about the extent to which authorities can take resources into account and the extent to which that can become a way in which the authority gets its wish granted over the wishes, needs and feelings of the relatives and, more importantly, P. That is why I keep returning to this point. The Minister said that he will come back to us on that, but it is so to the interaction between public authorities discharging their responsibilities under the Bill and under other legislation on assessment processes that it has to be clear. 
 That brings me to assessments. It is important that the Bill be clearer about where and when public authorities have a duty to bring in an independent advocate or independent consultee—obviously, I prefer the former title, but for the sake of getting a clear response about how the Bill will work I will use the Government's terminology. The Bill also needs to be clear about the interaction between social services authorities and health authorities, for example, in the complex decision-making processes related to discharge from hospital, for which a hierarchy of assessments needs to be gone through, such as assessments about someone's entitlement to NHS continuing care, whether they are ready to be discharged, which is a partial assessment, and about their ongoing community care needs. 
 It is therefore important to be clear about on whom the duty rests at the beginning of that process. Does the duty to bring in an independent consultee at that point rest with the NHS or the social services department? Does the duty, and therefore the responsibility for funding the independent consultee's work, switch if the person is deemed not to be entitled to NHS continuing care? At the point at which it becomes a social services assessment, does the social services department pick up the bill for the independent consultee's work? Those things need to be clear, because there is scope for local dispute between the NHS bodies and social services about who has responsibility for funding independent consultees. 
 In our last sitting, my hon. Friend the Member for Chesterfield (Paul Holmes) rightly asked the Minister to say more about the ''pay and rations'' aspects of providing an independent consultee service, and about how the consultees will be made independent and put at arm's length from the bodies that have a duty to bring them in. Will the Minister say something about that? 
 I return to whether there should be a consultee or an advocate, which it is and how they work, and whether it is possible to draw a line around advocacy and to define it in a way that meets the needs of parliamentary counsel and the Government. Some body language—shakes of the head—communicated the view that that would be difficult. Nevertheless, I put it to the Minister that in the Mental Health Bill there is a proposition that there should be an independent Mental Health Act advocate. It seems, therefore, that parliamentary counsel has found a way of putting that into the language of Bills and has found a way of defining it to meet the need in that respect. 
 Given that a substantial number of people who will be subject to compulsory treatment lack capacity, we need to be clear how the new independent mental health advocates will work and how, when they are appointed under the Mental Health Act, they will be prevented from providing any of the kind of advocacy that is described in the amendments under discussion today. Will it be possible for someone who acts as an independent health advocate under another piece of legislation to act as an independent consultee under this legislation? 
Mrs. Humble rose—
Mr. Boswell rose—

Paul Burstow: I have a choice—I shall give way first to the hon. Lady and then to the hon. Gentleman.

Joan Humble: The hon. Gentleman raises an interesting point. There will be, for example, cases in which elderly people who are in an acute hospital, who have mental health problems and whose capacity may be in doubt, are being relocated to residential accommodation in the community. Who will look after their needs? Will it be the independent consultee under the provisions of this legislation, the proposed Mental Health Act advocate, or the local social worker in consultation with doctors?

Paul Burstow: That is an excellent question, and I look forward to an excellent answer to it from the Minister. Someone who is an elderly, mentally infirm patient—perhaps a dementia sufferer—might be provided with services by the local mental health trust. It therefore must be clear whether in those circumstances they and their relatives will be able to say, ''We think we should be able to have access to an independent mental health advocate for P, rather than an independent consultee.''
 How will it be made clear which is the relevant entitlement and how that entitlement is triggered? One of the entitlements may be more generous because presumably, in the context of the Bill, P will be able to benefit from a consultee only if he or she is unbefriended. That relates to a point made by the hon. Member for Daventry (Mr. Boswell), that others who lack capacity in a community or village setting might be friends of P. It would be useful if the Minister said whether there are any circumstances in which an appropriate authority might be able to pray in aid the fact that a person is not unbefriended, because there are other members in that person's community who can be consulted, and that therefore it does not have a duty to bring in an independent consultee. It would be useful to know whether others who lack capacity could never be classified as friends, for the purposes of the legislation, in relation to the appointment of the independent consultee.

Tim Boswell: Just to add to the palette of difficulties that we as a Committee are teasing out, another point occurred to me when rereading the Bill. Circumstances might arise in which a person had been admitted to hospital for an acute condition—perhaps arising from self-harm, for example—and in which an independent consultee could be involved while the NHS body was considering courses of treatment or referral. Will the hon. Gentleman seek the Minister's assurance that any independent consultee would not be precluded by the legislation from making a recommendation that such a person should be referred back to a mental hospital for further treatment if that is appropriate?

Paul Burstow: I am grateful to the hon. Gentleman for asking that question; I will let it bounce off me and look to the Minister for a response.
 Let me tease out a little further something else that the Minister said to the Committee: that the Department—it would be useful to know which Department we are talking about for this purpose—would widely consult partners outside Government on the development of the independent consultee service. She went on to say that advocates could train to be independent consultees. It would be useful if she let us know which partners she has in mind. Do they include existing, established advocacy providers? It is crucial that advocacy services sign up, if that is possible, to the proposed developments. It would be helpful if the Minister told us with which established advocacy networks her Department has had discussions on the developments. As I understand it, no established advocacy networks or associations have so far shown a willingness to sign up to the proposals, because they do not believe that they constitute advocacy, so could the Minister say which members of staff would be 
 likely to take on the role? That goes back to the question asked by my hon. Friend the Member for Chesterfield at the previous sitting. 
 Those are burning questions for many outside the Committee, as I am sure the Minister understands. That is why I am doing my best to ensure that they are put to her today. I look forward to her response.

Angela Browning: I, too, support the new clauses. If I may, I shall paint a picture for the Committee in respect of new clause 25 and assessing capacity. We have heard much about people in a general hospital—I am thinking particularly of elderly people who are admitted, for example, to trauma wards because of fractures and similar things, but who may have a complex range of conditions, including some degree of mental incapacity resulting from depression or related illnesses, which may or may not be medicated. Clearly, the usual procedure when someone is admitted to hospital is that any medication that they are already taking is identified and continued. However, if we consider the vast spectrum of the frail elderly who would fall within that group, it is easy to see that a lot of people will slip through the net.
 I shall paint a picture for the Committee based on my dear late mother's situation only months before she died last year. She had Parkinson's disease. She was very frail, very elderly and in residential care. Parkinson's, as people will know, is very debilitating; it was a terrible affliction for my mother, and the longer she had it, the more it affected her quite severely. I recall going to see her one day because someone from the Parkinson's Disease Society was coming to talk to her about the local group. I was astonished by how my mother picked up when the lady from the society was talking to her; she was quite perky. I was astonished at how well she seemed and how articulate she was, and I noticed the same thing later in the year, when she was admitted to hospital. She was there for nearly three months and was genuinely very poorly, but the moment the doctor came in my mother, being one of the old school, would suddenly take on a new dimension and have an articulate conversation with the doctor. 
 The lady from the Parkinson's Disease Society, for which I have great admiration, said in passing to my mother, ''Oh, we're doing a lot of research at the local university. I wonder whether you'd be interested in taking part.'' My mother beamed and said, ''Yes, I would.'' The lady asked, ''Shall I put your name down?'' and my mother replied, ''Oh, yes. Put my name down.'' I just sat there, because after all it is not for bossy daughters to intervene at such a stage, but I was quite astonished by how the conversation went. No definition or details of the research was given, but her name was now on the list. Let us imagine that someone asked me at that point whether my mother was able to take on board what the term ''research'' might mean. I was concerned because my mother had stopped going to out-patient eye clinics because she was simply no longer well enough to handle going to a hospital out-patient clinic, so the idea that she was volunteering for unknown research filled me with horror. I was tempted to intervene and say, ''Take her 
 name off the list at once,'' but I thought, ''No, I must not do that,'' because she seemed in full control of the conversation. 
 I tell that story because there is a fine balance to strike when judging the capacity of elderly people. The assessment needs to be made by somebody who knows the person well and is familiar with all the material facts about them and any other related matters affecting them. When everyone else had left, I asked my mum what sort of research she thought it would be, and she said excitedly that she did not know, as if she was going on a great adventure. I then asked her, ''What do you think they'll do? Will they want some of your blood, or will they want to take an X-ray? You don't think they'll want to do brain surgery, do you?'' She simply replied, ''I hope not, dear.'' As it happens, events overtook her and she died a few months later. 
 I picture that occasion with her now, and I can envisage all types of scenarios involving that type of person, of which there are many. New clause 25(3)(b) states that ''an independent advocate'' is needed to make accurate assessments and I agree, because I wonder what might have happened had I not been present at that conversation that I have just described, as well as a few other times in the hospital when my mother perked up for the doctor—she would be flat out for 24 hours, but she would perk up for the doctor. It is very worrying to think how people who do not have somebody close to them or someone to act as an advocate for them will make some of the decisions that have to be made, particularly the big decisions covered by the clauses. 
 This morning, I advised a Member who had come to me with a problem: a social services department had refused to assess somebody with an autistic spectrum disorder on the ground that they had an IQ of over 70 and that therefore their needs could not be anything like those of somebody with a learning disability. I provided the necessary Government guidance on that, which clearly shows that it has a statutory duty to assess that person. In our casework, we frequently deal with people being unable to access their rights under existing legislation. 
 I have one more anecdote from the Browning casebook. This week, an elderly lady in my constituency who had been admitted to a general hospital was discharged to a cottage hospital. We have discussed the 28-day period, but elderly people sometimes stay in hospital for longer than that. Because that lady had no relatives, she had nobody to act as an advocate for her. Those who have some knowledge of Devon geography will understand my point when I say that the lady was discharged to a cottage hospital in the middle of Dartmoor. The only person this lady has any contact with is her next-door neighbour. My hon. Friend the Member for Daventry spoke about the friendly neighbour who does not have any legal responsibility for a person. She is a kind, interested, elderly neighbour, and she was the only person who visited that lady while she was in the general hospital. The elderly neighbour phoned me last Thursday and said, ''They are going to discharge her tomorrow to the middle of Dartmoor. It will be impossible for me to visit her there. She will have no 
 visitors, and goodness knows how long she will be there. Is there anything you can do?'' I am pleased to be able to say that there was, and she has now been discharged to our local cottage hospital. 
 Such cases arise almost daily, and I worry about those in which there is nobody to advocate for people and to make sure that certain factors are taken on board, such as the location of where people are being sent. That may be a long-term decision; someone might be being placed in a nursing or residential home, or a care home if they have a learning disability. The whole picture must be taken into account. If someone is put at a certain location, will it be more difficult for the few people they know to continue their relationship and contact with them, and what might be the detrimental effects on P if they are divorced from the very few people with whom they have any form of social contact? 
 All those decisions have to be made, and sometimes—as we know, and as is stated—they have to be made in a hurry because of an emergency or a crisis. I support the new clauses. People may well say that there is already legislation that gives a statutory duty to do this or that, but hon. Members know a lot of people for whom such things simply do not happen. Somebody has to prod and to ask the difficult question; somebody has to take the role of the awkward squad to get the right outcome for P. Unless there is an independent advocate to do that, the wrong decisions are made and people are affected badly by them. I support what has been said about the need to assess capacity and about how to provide advocacy, especially when big decisions are taken. I hope that the Minister will look kindly on the amendments.

Ann Winterton: Once again, we have had a wide-ranging debate, which has gone to the heart of what some members of the Committee feel—the service we are offering does not fulfil the advocacy role. However, I hope to reassure hon. Members in that respect.
 It will come as no great surprise to hon. Members that we cannot accept the new clauses for several reasons, not least because they would expand the independent advocacy role to a much wider setting than we believe to be deliverable. It would be extremely difficult to define some assessments for which the new clauses state there should be advocacy. 
 I shall repeat what the new independent consultee offers. We want to build on the very best of advocacy, which was described by my hon. Friend the Member for Blackpool, North and Fleetwood (Mrs. Humble). In the case cited by the hon. Member for Tiverton and Honiton (Mrs. Browning), if someone was considering a long-term move and was unbefriended, the independent consultee would be able to talk to neighbours and friends when considering all the options. That is the point: the service we are describing states that what we want is to interpret or represent someone's feelings and to consider the wider circumstances, such as what options are available. 
 For example, in the case that the hon. Lady described, an independent consultee might say about 
 a certain place, ''Well, it is extremely attractive, it has nice grounds and a good atmosphere, but on the other hand there is somewhere else that would allow a neighbour to visit.'' The decision would then be which was more important to the person concerned. What we propose is much wider and it covers exactly the points raised by the hon. Lady. 
 I reiterate that in developing the new service we had to consider to whom it would be most appropriate to apply it. Thinking about all the circumstances, we decided that, in trying to define advocacy services, which are different depending on where they are, we had to consider what happens at present to people who are unbefriended—those who have no one on their side. 
 We had to devise a system that would give them a service that was designed for them. I strongly believe that what we propose is advocacy plus; it is something extra on top of what people might usually associate with advocacy services. As we said, funding of £6.5 million is available for it; it is a statutory service. We also said that we want specific national standards and training for the service. There is no reason why people who are advocates at present should not undertake that extra training. 
 The Mental Health Bill defines particular circumstances in which advocacy comes in; because conditions have to be met, it is easier to define. Therefore, one can say that there is a clear line in the process where advocacy can be brought in. That does not mean that someone who is an advocate under the Mental Health Bill should not be an independent consultee as we have defined the role. That involves building on the best of services and people who are already trained, as well as building on how primary care trusts and social services create that independence at the moment. In many senses, it involves professionals who are able to make that judgment. We need to ensure that they do that through the training we provide. 
Several hon. Members rose—

Ann Winterton: I give way to my hon. Friend the Member for Blackpool, North and Fleetwood.

Joan Humble: I thank the Minister for outlining that, but I am reminded of our earlier discussions on terminology and too many different titles. Mrs. P, the elderly person who is mentally infirm and in hospital for treatment for a medical condition, may be faced with an individual coming into that hospital wearing two hats—independent consultee and independent advocate—whether or not those apply under the Mental Health Bill. Surely it would be much simpler for Mrs. P, lying in her hospital bed, to use one title for one person who comes in and offers her the support she needs, instead of the hospital, or whoever, deciding to invite the same individual under two titles.

James Cran: Order. Before the Minister speaks, although I know this is a very important debate, I must insist on short interventions.

Ann Winterton: It is important to be practical about this matter. There will, to an extent, be different roles.
 It may not always be appropriate for somebody to act in both roles for the same individual, although it may be appropriate at other times. Under the Mental Health Bill, the advocate's role is to express the wishes and feelings of P when they are being detained under the Mental Heath Act 1983. There may be a difficulty if the same person plays both roles; we would have to explore that. However, the general position on advocacy does not undermine the services that are currently provided. I believe that professionals and people who are advocates at the moment would be able to undertake the different roles—although not necessarily always for the same person, because there might be difficulties within that framework.

Tim Boswell: May I raise again the issue of unbefriended people? If a person's carer is a close friend or a sibling, that carer may feel that they do not have the capability to make an adequate assessment of the situation on P's behalf. However, it might be possible for them to approach the local authority or the NHS body and say, ''Would you please arrange for this independent consultation?'' At the moment, there is not even provision for that.

Ann Winterton: We need to consider that in discussions on clause 39, when we will explore whether it would be appropriate for such a thing to happen in other circumstances. We have talked about family disputes, which the hon. Member for Tiverton and Honiton has raised previously. We need to consider circumstances in which a person really does not feel able. We would want to consult on that.

Angela Browning: Has the Minister reflected on the time scale involved in enabling the independent consultee to make adequate investigations of options? For example, he might have to look at several residential homes, which could be time consuming. How will that fit in, particularly if a patient is discharged from hospital, with current legislation that imposes a financial penalty on the local authority if the person is not discharged within a certain time frame? How will such a proposal be adequate when other legislation impacts on discharges from hospital?

Ann Winterton: I want the independent consultee to be involved as quickly as possible—for example, if there were any likelihood of a change of accommodation. The hon. Lady refers to the circumstances of discharge from hospital. There have been vast improvements there and this is almost practice now in many hospitals, which must be spread further. The way in which local authorities and hospital trusts are working together is extremely impressive. When people are admitted to hospital, a quick assessment is made of how feasible it is to discharge them quickly. There is that incentive and we want the independent consultee to be brought in as soon as possible.

Paul Burstow: To finish that point, can the Minister confirm that the Department will consider issuing further guidance to NHS bodies and local authorities on precisely the point at which the clock starts, for the purposes of the delayed discharge legislation and liability to pay fines?

Ann Winterton: I am not sure that further guidance will be issued on that matter, but I shall write to the hon. Gentleman about it. The processes that have been set in place will be effective, but we want the independent consultee to be brought in as quickly as possible.
 Several other issues have been raised, such as who will be responsible for funding the independent consultee. The single assessment process will ensure that a joint assessment is made of the needs of people in continuing care. We will want all NHS and social care providers to work together when providing continuing care and to agree jointly eligibility criteria in an assessment of need. 
 These measures deal with circumstances in which accommodation is provided by the NHS or social services. If a village community is providing personal care as defined under the Care Standards Act 2000, it will be regarded as a care home. If people are unbefriended or placed there after an assessment under section 47 of the Health and Social Care Act 2001, they will have an independent consultee. As I outlined in my response to the hon. Member for Tiverton and Honiton, consulting friends within that scenario is something that the independent consultee will want to take into account when building up a picture of what is in the person's best interests. He might learn more about the feelings of that person and the circumstances in which the person is living.

Tim Boswell: It is helpful to have a dialogue such as this. The Bill is about persons who might have fluctuating capacity and circumstances will change from time to time. An independent consultee could be called in to make a set of recommendations for a particular situation which could then be accepted or rejected. Would it be open to that consultee to set conditions such as, ''If the circumstances change, this should be revisited.''? If he could do that, would the appropriate authority be obliged to have regard to any changing conditions and to make the appropriate alterations, or, if necessary, to reconsult an independent consultee? In other words, will consultation be not just a one-off, but part of a continuous process as conditions change?

Ann Winterton: I have said that we want to consider annual reviews; perhaps something could be built into that. Obviously, we will have to consult on that.
 Some Members asked whom we have consulted about the new service. We have consulted a number of advocacy groups, but it would be inappropriate to go much further this before Parliament decides whether it wants to proceed with the service that we are offering. I strongly believe that the independent consultee service will be a new and innovative service for a very special group of people—the unbefriended and vulnerable, who currently do not have anybody who can help them in these circumstances. We will consult further about whether the group of people to whom service applies can be extended and whether other decisions should fall within its reach. The service will be statutory, and I believe that it will build on the very best of advocacy services. However, we cannot accept 
 the new clauses because they extend beyond the remit of the Bill. We want to develop the service and, within that process, to allow that there may well be room for the kind of extensions available under clause 39.

Paul Burstow: Will the Minister say a bit more about the Government's thinking on how the organisations of independent consultees will be set up and funded, who will be responsible for their pay and rations, and how they will be kept at arm's length from the bodies that have a duty to use them? It would be useful to get clarity on those matters. More specifically, I would like the Minister to say how the funding responsibility might shift from the NHS to social services if a series of assessments is being made, or how that issue might be dealt with.

Ann Winterton: I addressed some of those issues when I dealt with the single assessment process; I said that there is already joint working. I cannot go into the minutiae of how the service will operate because that is what we are consulting on—
Mr. Boswell rose—

Ann Winterton: I will come on to the hon. Gentleman's point.
 As I have said, if we look at how advocacy services currently operate, we see that they can be employed by social services and retain their independence. I do not think that there will be an enormous problem with the independence of groups that receive funding from social services. Often, the people working in these services are professional people. The problem is not insurmountable, as the hon. Member for Sutton and Cheam is implying. These services are already operating, and we simply want to build on current best practice.

Tim Boswell: I am genuinely trying to help the Minister, because I know that she is trying to help the Committee. Will she reflect on the possibility of writing to the members of the Committee—I make no self-important boasts about our commitment to the issue, but I think that we are all interested—in order to flesh out some of the points raised, whether explicitly or by implication, about independent resourcing, status and so forth? Perhaps she could use us as quasi-consultees as the concept develops. That would be immensely helpful and much appreciated.

Ann Winterton: I am perfectly happy to write about the £6.5 million that has been set aside and about the consultation process, but let me say strongly to the hon. Member for Sutton and Cheam that the route that he is taking almost precludes many of the organisations that he mentions from benefiting from what I think will be an improved service. I certainly do not want to rule out the many existing advocacy services that work closely with social services and others building on their work and participating in the new service. I hope that is not what he is suggesting.

Paul Burstow: That is incredibly helpful. I am not taking any route; I am attempting to ascertain the Government's route. It would be useful if, in her letter, the Minister gave at least a sense of the parameters of the consultation. It is rare for the Government to base consultation on a blank piece of paper; they normally have a fairly clear idea of the parameters within which
 they want to work, and it would be useful to know what they are.

Ann Winterton: I am happy to share some of that information with the Committee. Having said that, we feel unable to accept the new clauses, but I hope that I have given the Committee assurance that the service will be new and innovative; it will build on the very best of advocacy, and will certainly not undermine it.
 Question put and agreed to. 
 Clause 36, as amended, ordered to stand part of the Bill.

Clause 37 - Duty of local authority to seek advice before providing accommodation

Ann Winterton: I beg to move amendment No. 231, in clause 37, page 21, line 14, leave out from 'with' to end of line 14 and insert '—
(a) section 21 or 29 of the National Assistance Act 1948 (c.29), or 
 (b) section 117 of the Mental Health Act, 
 as the'.
 The amendment is designed merely to extend the duty of a local authority to seek the advice of an independent consultee before providing accommodation for two important groups of people. We have listened carefully to what interested groups have had to say about the independent consultee and the need to widen the provisions, hence the amendment. 
 We want the safeguard to apply to people moving into hostels, and to people providing accommodation in relation to those discharged from detention under the Mental Health Act. Clause 37 currently applies to residential accommodation as defined in section 31 of the National Assistance Act 1948, which covers a wide range of accommodation that a local authority may assess as being appropriate to meet the care needs of people who lack mental capacity. That accommodation consists of: care homes, including those in which nursing is provided; ordinary and sheltered housing; housing association or other registered housing; and private sector housing provided by a local authority. However, it does not include hostel accommodation. The amendment will ensure that people who lack capacity benefit from the support of an independent consultee if they move into hostel accommodation, just as they would in the other types of accommodation that I mentioned. 
 Secondly, when people are discharged from detention, they are assessed for aftercare services, which may result in a proposed move to accommodation provided under section 117 of the Mental Health Act. That is the same sort of accommodation as that mentioned in the National Assistance Act 1948, and we want the independent consultee to be involved in such decisions. Having clarified that for the Committee, I hope that hon. Members feel able to accept the amendment. 
 Amendment agreed to. 
 Amendments made: No. 232, in clause 37, page 21, line 16, at end insert— 
'( ) This section does not apply if P is accommodated as a result of an obligation imposed on him under the Mental Health Act.'.
 No. 233, in clause 37, page 21, line 18, after 'interests', insert 
'and, in particular, as to the matters mentioned in section 4(5)'.
 No. 234, in clause 37, page 21, line 21, at end insert— 
'( ) If the local authority— 
 (a) did not seek advice from an independent consultee before making the arrangements because they were satisfied that subsection (3)(a) or (b) applied, but 
 (b) subsequently have reason to believe that the accommodation is likely to be provided for a continuous period that will end 8 weeks or more after the day on which accommodation was first provided in accordance with the arrangements, 
 they must seek advice from an independent consultee.'.—[Ms Rosie Winterton.]

Tim Boswell: I beg to move amendment No. 51, in clause 37, page 21, line 24, at end add
'and if they decline the advice must give reasons in writing for doing so'.
 I sense that the Committee wants to make progress, not least to ensure that remaining amendments and other aspects of the Bill are debated before the guillotine falls. I do not intend to speak at length about the amendment—in a sense it speaks for itself. 
 The amendment relates to another concern we have, which has been made explicit this morning and need not be returned to, that local authorities might not always act with clean hands. They might decide on a placement that suits their budget or administrative arrangements but is not in the best interests of P, even though it should be. My hon. Friends, particularly the hon. Member for Tiverton and Honiton, have rightly drawn the Committee's attention to the fact that even the existing framework of statutory duties is not always discharged as it should be. The amendment is designed to smoke out the local authority's reasoning and—consistent with other amendments I have tabled on this subject—to provide a proper audit trail for its decision. It would prevent a situation in which a local authority goes through the motions of appointing an independent consultee having already shut its mind to the possibility of taking any notice, then says that it is grateful for the advice but is going to do precisely the opposite. The amendment would at least oblige the authority to state why it did not accept the advice of the independent consultee, who could well, as the Minister just reminded us, be a professional person and who would certainly be a specialist. The reason could be that it does not have the money, or it genuinely thinks that X will be better than Y. That would be a healthy discipline on authorities. 
 Students of higher criticism will note that I have not tagged a similar duty on to clause 36 in respect of NHS bodies. As I spent a somewhat fevered August, as the rain teemed down, drafting my amendments, I am not entirely clear about why I did not. If I am honest, it was probably through inadvertence. If I may venture a possible defence, it is fair to say that NHS decisions could properly be clinical decisions in a way that local 
 authority decisions could not be. Therefore, it might be difficult to trespass on those matters, because there would be an argument about whether they trumped the lay advice given by the independent consultee. Also, there are formal procedures—although I have reservations about them—in the NHS for patient representation and a complaints procedure.

Ann Winterton: Does my hon. Friend agree that not only would the amendment make the social services department focus on the reasons for turning down advice from the independent consultee, but by ensuring that he had those reasons in writing, it would give comfort to the independent consultee, because he could show to anyone interested that he had done his job but that his advice had been rejected by the authorities?

Tim Boswell: I think so. I am not too worried about the legal obligation on the independent consultee to do a professional job, although we discussed that during an earlier amendment of mine about malfeasance by the independent consultee. However, the amendment would provide an audit trail that should be mutually beneficial for the parties involved.
 That brings me to my final point. Given the principles of the Bill, anybody involved in the care of P or giving professional advice at any time may be under the hammer or under the threat of proceedings in the Court of Protection. Nobody could walk away lightly. The amendment floats the idea of establishing a more transparent decision-making process. It is intended to confront the issues involved and, if necessary, to ensure that there is clear understanding of why the advice that the Minister is anxious should be tendered is not being taken.

Ann Winterton: I understand the sentiment and intention behind the amendment and I assure the Committee that the Government's intention is the same. It is only reasonable that the independent consultee be made aware of the final decision and that he be able to challenge the decision maker if that is appropriate. However, the amendment is unnecessary because, as we do now, we will expect social services to keep proper records on how the independent consultee's advice has been taken into account and, if relevant, the reasons for disagreeing with or ignoring it. That is a matter of good practice and guidance and is already covered in the code of practice, on page 123 at paragraph 11.37. We want to ensure that any decision to go against the independent consultee's advice is challengeable. However, that is already the case for decisions taken by a council, so no special arrangements need apply. There is legally binding guidance on the single assessment process for older people which covers the instances that we are discussing.
 In certain situations, it might not be appropriate to give formal reasons in writing. For example, a decision maker might want to advise the independent consultee of the decision personally, or circumstances might change rapidly and the advice might be reviewed. We must remember that such circumstances might arise. That said, and although I am asking the hon. 
 Gentleman to withdraw the amendment, it has been helpful to reiterate to Committee members that we expect any such decisions to be put in writing.

Tim Boswell: In the light of the Minister's assurances, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 37, as amended, ordered to stand part of the Bill.

Clause 38 - Exceptions

Joan Humble: I beg to move amendment No. 198, in clause 38, page 21, line 26, leave out beginning to end of line 32 and insert—
'The duty to identify and consult an independent advocate in relation to serious treatment or major changes in accommodation and support arrangements for P shall be considered discharged by the relevant authority where that authority has consulted and accepted the representations of either— 
 (a) a donee of a relevant lasting power of attorney created by P, or 
 (b) a deputy appointed for relevant purposes by the court for P, or 
 (c) a donee of a relevant enduring power of attorney (within the meaning of Schedule 4) created by P, or 
 (d) an independent advocate already recognised by the relevant authority as representing the interests of P'.

James Cran: With this it will be convenient to discuss new clause 26—Exceptions—
'(1) The duty to identify and consult an independent advocate in relation to serious treatment or major changes in accommodation and support arrangements for P shall be considered discharged by the relevant authority where that authority has consulted and accepted the representations of either— 
 (a) a donee of a relevant lasting power of attorney created by P, or 
 (b) a deputy appointed for relevant purposes by the court for P, or 
 (c) a donee of a relevant enduring power of attorney (within the meaning of Schedule 4) created by P, or 
 (d) an independent advocate already recognised by the relevant authority as representing the interests of P. 
 (2) Subsection (1) does not apply if— 
 (a) an agreement between person P and D cannot be reached about a decision or action and where D is employed by an NHS body or local authority social services or D is contracted by an NHS body or local authority social services in respect of the provision of care and treatment for P, or 
 (b) there is a difference in view between person P and any person who is consulted under section 4(6) and the decision or action is the responsibility of an NHS or local authority social services or organisation contracted by an NHS body or local authority social services.'.

Joan Humble: I am not entirely sure that I am able to move the amendment, but I seek the Committee's indulgence in speaking to new clause 26, which is linked to amendment No. 198.

James Cran: For the avoidance of doubt, let me say that the hon. Lady can move the amendment.

Joan Humble: I would have expected the hon. Member for Sutton and Cheam to do so, because he is a co-signatory to the amendment.

James Cran: Order. We do not want to spend too much time worrying about that. Let us get on.

Joan Humble: New clause 26, which was tabled by my right hon. Friend the Member for Coatbridge and Chryston, would make it clear that if P already had a donee, deputy or independent advocate, a public authority would not be under a duty to provide an additional independent advocate in relation to decisions about serious medical treatment or changes in accommodation. The new clause would be especially relevant if P was having problems or difficulties with family members and there might be a dispute. It would place a duty on the appropriate public authority to provide an independent advocate if agreement cannot be reached between P and a decision maker who was employed by the public authority, or if the public authority becomes aware of a dispute between carers and P involving the provision of local authority services.
 The amendment reflects the fact that P can be equally vulnerable when there is a dispute among the people providing him with care, treatment and support. Clearly, each group caring for P has legitimate needs, pressures and concerns of their own: as was said earlier, social services departments may face resource pressures, and relatives have their own concerns and needs. However, the Bill is about P. P is the most important person. Again, I urge my hon. Friend the Minister to accept the importance of independent advocacy to resolving disputes. The Bill is a golden opportunity to do that, and new clause 26 strengthens the centrality of P and P's needs.

Ann Winterton: I shall be very brief. Where there might be disputes among family members, we have said that we will look at the independent consultee service, and consult on whether it is appropriate to extend it into some of the areas that my hon. Friend has described. However, I believe that the amendment is unnecessary, and despite my hon. Friend's eloquent speech, I hope that she will consider withdrawing it.

Joan Humble: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 38 ordered to stand part of the Bill.

Clause 39 - Power to adjust role of independent consultee service

Question proposed, That the clause stand part of the Bill.

Tim Boswell: The Minister has been helpful to the Committee in seeking to give further flesh to her developing thinking about the independent consultee service. After some rather triangular exchanges, she has suggested that she is minded to write to members of the Committee and flesh it out as much as she can. I understand the difficulties while consultation is in progress. That is characteristic of the Bill as a whole. Just because we have not left our gloves on the table during the Committee stage, it does not mean that we do not reserve the right to fling them down at a later
 stage. I am sure that the Minister and those who listen to these debates will be aware of that.
 Within the exact context of the assurances that the Minister has already given that she is developing her thinking and might seek to widen the powers of the independent consultee, I would like to record in clause stand part the helpful assurances that we have already had, not only on the general framework, but in consideration of family disputes and the position of family members or day-to-day carers who feel unable to participate in the decision themselves, but would be happy for a third person to do so on their behalf. That will be helpful. 
 What has forcefully struck me—my understanding has firmed up during the debate—is the idea that we are embarked on a much bigger undertaking than we previously understood. The Minister has referred to 64,000 decisions, not individual cases, per year—much larger than in the whole history of the Court of Protection. The hon. Member for Chesterfield received a written answer on that specific subject the other day, and the numbers involved are different by an order of magnitude. I make no complaint about that, because the provision is meeting a need and the Minister is right to do that. However, not least because she has suggested that she would be minded to consider whether to have the affirmative procedure in relation to clause 39, she might like to give some thought to developing the idea. 
 The first development should be in the regulation-making process. Sometimes, provisions are made in legislation for first regulations to be subject to affirmative procedure, and for subsequent updating regulations to be subject to negative procedure. In other words, the thing is run past the House once, and then, as adjustments are made—the term is used later in the clause—those can be subject to the negative procedure. I am not advocating that at present, because I have not tabled an amendment on the matter—I am thinking aloud and sharing my thoughts with the Committee. I do not ask the Minister to give us an assurance today, but I hope that she will consider how she might bring to the House the process of developing the service and the decision-making that will flow from it. 
 To have an idea of the overall scope and then later to consider specific issues about widening that scope are two different things. When the Minister has consulted on some of the matters discussed in relation to earlier clauses—we will not return to them now—such as the definitions of an NHS body and a serious medical treatment, it would be useful to have a proper debate on that in this place, looking at the concept as a whole. 
 My second point is also for future consideration by the Minister as she develops her thinking. It relates to whether the independent consultee is a type of service. When I originally read the Bill, I thought in terms of a minority of cases in which there was a problem, and in which the independent consultee would operate independently—rightly—to deal with that particular problem and to give advice to the public authorities that were involved. However, given the scale and the aspirations that the Minister has set out for the 
 service—what she likes to call advocacy plus, although some of us are sceptical—it is now clearer to me that we are really discussing a full-blown public service, albeit one delivered through local authorities or through the NHS locally. It is a panel of people. 
 The Minister will be aware that I have tabled some amendments about the role and function of the Court of Protection visitors, of whom there will be fewer and who are more specialist, suggesting that the Court of Protection may want to report to the Lord Chancellor and be accountable for the way in which it works. If that were to be the case, I would say, a fortiori, that the system of consultees is a big and important service, by which the Minister sets great store, and that she therefore might like to reflect on the mechanism by which it might report to Parliament. We can rest assured—hon. Members on both sides of the Committee have made it explicit—that cases in which a decision has been made, ostensibly with professional advice, that goes against what we or people close to P feel is in P's best interests, will remain part of the day-to-day casework of MPs. We are all agreed that there is a need for independent advice in such situations. However, if this service is to be introduced, we should consider whether we should draw it all together—perhaps by appointing a head of service or something similar—so that there would be some focus on the service that we could eventually run past Parliament. 
 I have brought with me, because it is a good and rather encouraging document, the new annual report of the Public Guardianship Office. I welcome that report, and will talk about it when we reach the appropriate point. I wonder whether we might have a similar report on the independent consultee service, so that we could begin to draw together the lessons and good practice from the experience of people carrying out that very important task for the person without capacity.

Ann Winterton: As I have said, we are considering the affirmative procedure in relation to regulations made under clause 39, particularly with regard to expanding the type of service that the independent consultees will offer and the people to whom it will apply.
 The hon. Gentleman's second point was about the possibility of a report to Parliament. The NHS and local authorities will have responsibility for scrutinising the work of the consultees; their work comes under the remit of the Healthcare Commission and the Commission for Social Care Inspection. My initial reaction is that I would be hesitant about saying that we needed to build a whole new method of parliamentary scrutiny, because that might not allow the kind of developments that have been described, such as advocacy groups that operate locally, and might hinder our getting the sort of service that I have described. I am anxious not to establish something that will not allow people to build on that.

Paul Burstow: It would be useful if the Minister included in the letter that she kindly offered to write to us—

Ann Winterton: It's turning into a book.

Paul Burstow: The bigger the better—perhaps it will be a really good read.
 Will the Minister say in that magnum opus who will have responsibility for inspection and for setting standards for independent consultees? Given that there could be social care and health care roles for those people, will it, as she says, be CSCI or the Commission for Healthcare Audit and Inspection—

Ann Winterton: I do not want to say that we will consult relevant organisations if we in this Committee have already decided exactly what the thing will look like. I will, in so far as I can, set out some of the existing services, but I want to ensure that we consult properly and openly on an important new service.
 Question put and agreed to. 
 Clause 39 ordered to stand part of the Bill.

Clause 40 - Codes of practice

Tim Boswell: I beg to move amendment No. 53, in
clause 40, page 22, line 4, after 'must,' insert 
 'after consulting with such persons professional and lay as seem to him to have an interest,'.

James Cran: With this it will be convenient to discuss the following amendments: No. 146, in
clause 40, page 22, line 4, after 'practice', insert 
 'in suitable formats for the information and guidance of P and of any independent advocates assisting P and'.
 No. 54, in 
clause 40, page 22, line 12, at end insert— 
 '(ee) with respect to the information to be compiled and retained by persons specified in this section in connexion with their duties under this Act, and'.

Tim Boswell: As we move to this part of the Bill, I should say that in no sense do I regard the codes of practice as miscellaneous or supplementary: it is essential to the delivery of the Bill and the change in culture that we all seek that they should be taken seriously. It is reassuring that Ministers have referred to them in their deliberations. They may not be as legally binding as the Bill itself, but they are an important part of the delivery process. I have no problem with them; I simply emphasise their importance.
 I do, however, have one little problem: I notice that Ministers have referred sometimes to codes of practice and at other times to a code of practice. We have a draft code of practice before us. There should be horses for courses. We probably need a collective document, which would be ''the code'', but that would not be sufficient unless it contained sub-codes targeted at particular situations, or at classes of people who may have occasion to refer to the code. In correspondence that I have seen, there has been some suggestion that the code is for professionals such as local authority decision makers and NHS professionals, and that if it goes to Auntie Flo, who happens to be a carer or the donee of a lasting power of attorney, she will not have the firepower or stamina 
 to wade through it all, and may not be used to the language in it. 
 The use of multiple formats—a possibility touched on in an amendment that I did not table, but the spirit of which I find congenial—is part of the issue. If the Minister's legislation is to succeed, we need to ensure that it is appropriate for people of all levels. The code should be in text, but there should be other ways of delivering it—for example, through training programmes. When I read the Public Guardianship Office report, I was interested to see that there have been a number of open days or training days, on which people could come and have part of their work explained to them. That is the beginning of some positive good practice—but I am conscious that we are discussing a group of amendments, and I do not want to go on at length about this subject, as we will return to it. 
 It would not be appropriate in Committee to rehearse the role or otherwise of the Lord Chancellor—a great person in the land, and a role that I hope will continue as an office, if not a person—nor to be derogatory about the likelihood that he would take advice from other people. Of course he would, and the amendment merely reinforces the point that—[Interruption.] 
 Sitting suspended. 
 On resuming—

Tim Boswell: There have been few anecdotes in the Committee so far, as our debates have been too serious, so I shall share my memory of the last occasion when there was an interruption like that. I went to Berlin for the day to speak to political scientists, and at the very beginning of my speech, a power hammer—not, as in this case, an electric drill—started up. I had two options—to walk out in a huff and be very pompous about it, or to say, as I did, ''Well, I knew Alastair Campbell was good, but I didn't realise he was as well targeted as that.''
 As I was saying, we are not attacking the Lord Chancellor or suggesting that he would not want to consult, although some past Lord Chancellors—I will not be specific—have been reluctant to do so. It is terribly important that there should be consensual involvement, and that the code is not seen as something that is produced pro forma, or is only for professionals. The code and the supporting information and training should be accessible to all persons who may need to use it. 
 Amendment No. 54 would add a specific tiret to the provisions of the code, or codes, in relation to information, and I shall emphasise two elements of it: first—this relates to a point that I have already made—is the importance for everyone involved of having a proper audit trail of the decisions that have been taken, which would involve keeping good records. There have been cases in which local authority records have been, or have become, 
 defective, which is regrettable. It is important that we know what we are doing. 
 Secondly, and more positively, this is not simply a matter of being able to prove that people have failed ex post, but of encouraging them in the good practice of keeping relevant information and understanding what is relevant to the continuous assessment of mental capacity and of the person's best interests. They should be encouraged to build up information and have it available, adding any relevant matters—for example, the opinions of carers and neighbours and so on—and to keep it on file. 
 I am conscious that it is always difficult to manage information if it gets overextended and out of hand; it is also possible that some information may be informal, and may consist of gossip, or may include elements of confidentiality that are more sensitive. But the principle that I set out in the amendment is that information is cardinal to the success of the Bill, as is the communication of codes and good practice. I hope that the two will come together and that people fully understand whatever is required under the code, including their important obligation to access information, to record it where appropriate, and to be able to reproduce it in the event of any subsequent dispute about decisions that they may have taken.

Joan Humble: I congratulate the Government on the draft code of practice. The Joint Committee was clear that it was vital that codes of practice, in so far as they could be finalised, should be produced alongside the legislation. Secondly, it is important to endorse what the hon. Member for Daventry said about the need for accessible and appropriate codes for professional and non-professional carers.
 P should also have access to information about the codes of practice. I urge my hon. Friend to produce information for carers in an easily accessible leaflet form, which could be circulated at day centres and the like. Information should also be produced in a language and using methods accessible to P, so that he or she knows what the issues are as well.

Paul Holmes: I shall speak to amendment No. 146. Clause 40 deals with the production of codes of practice to guide on the one hand those who might assess whether someone has capacity, and on the other those who might exercise powers on behalf of people who have been assessed as lacking capacity.
 Clause 40 (1) lists all those to whom the code might apply—for example, donees of lasting powers of attorney, deputies appointed by the court, people providing care and treatment and other examples. There are two glaring omissions from that list. First, it omits independent advocates—or consultees, to use the Government's preferred terminology. We have debated them at great length, in relation to clause 34, at other times in the Committee and on Second Reading. Given the amount of attention that we have paid to the role of independent advocates or consultees, it seems strange that they are left out of the list in subsection (1). It might be argued that it covers the matter with a catch-all phrase. However, it 
 seems to me that it would be better to specify a reference to the independent consultee or advocate. 
 The subsection's second omission is of the individual at the centre of the Bill, P, whose capacity will be assessed and who, if they are assessed as lacking capacity, will have key decisions about their life and treatment passed to other people to make on their behalf. It seems entirely logical and necessary to the Bill to require that the codes of practice should be produced in suitable formats for the information and guidance of P. Both previous speakers have referred to that. 
 The delay in providing documents such as ''Valuing People'', and later ones, in accessible formats has rightly stirred controversy among people with learning disabilities. As has been established in recent years, the move towards using such formats more often and extensively has shown that P's capacity can often be enhanced. Accessible formats and appropriate support can, to a degree, overcome what would have been automatically and rather paternalistically judged as a lack of capacity. 
 Amendment No. 146 would not only specify the use of suitable formats in the Bill—the Minister might argue that it is always assumed now that suitable formats will be used—it would reinforce the centrality of the Bill's whole purpose: to recognise, to the maximum possible extent, capacity on the part of P, before consideration even turns to lack of capacity.

David Lammy: I am back, taking over from the Minister of State, Department of Health, my hon. Friend the Member for Doncaster, Central (Ms Winterton). I cannot claim to have the eloquence and charm that she brings to the Committee, but all I can do is try my best.
 We have mentioned the code of practice many times during Committee sittings, and I am grateful for what hon. Members have said about the fact that we published the draft code—on 9 September, I believe. That document has added to our debates. Amendment No. 53 would insert a provision in clause 40 requiring the Lord Chancellor to consult lay and professional people before preparing and issuing a code of practice. I can reassure the hon. Member for Daventry by referring him to clause 41, which already covers this important point by saying: 
''Before preparing or revising a code, the Lord Chancellor must consult''
 anyone he thinks appropriate. I assure the hon. Gentleman that the appropriate people will include lay and professional people. I hope that he is satisfied with that. 
 Amendment No. 54 deals with clause 40, which says that the code must provide guidance on advance decisions and any matters that the Lord Chancellor thinks are appropriate. We discussed that subject when we talked about advance decisions, and this amendment would add a requirement to produce guidance on compliance and retention of information in connection with their duties under the Bill by people specified in clause 40. I reassure the hon. Gentleman 
 that we have not overlooked the importance of making it clear when records should be kept, and the draft code contains various references to that. 
 The hon. Gentleman has returned to this matter on a few occasions, and I remind him gently that paragraph 5.14 deals with an assessment of ''capacity and best interests'', paragraph 6.29 explains the duty of a financial attorney to keep accounts, paragraph 7.50 talks about the duty of a financial deputy to keep accounts, and paragraph 13.20 is about the retention or deletion of information obtained about someone who lacks capacity. As we continue to develop the code, further paragraphs may deal with the important business of record keeping and other things. I agree with the hon. Gentleman that this is an important area, on which more guidance might be helpful. 
 Paid carers and health and social care professionals could usefully be reminded of the need to keep records when important decisions are made on someone else's behalf, not least because they can be challenged about a decision if it comes to court—and if that happens, they might find it helpful to have kept a record about the decision-making process. I undertake, therefore, to give serious consideration, once the draft code is formally consulted on, to whether it would be useful to have a separate section in the code on collection and retention of information, or whether there is a need to add to the existing references to this matter. I am grateful to the hon. Gentleman for tabling the amendment, but given what I have said, I hope that he will withdraw it. 
 Amendment No. 146 would require the Lord Chancellor to produce a code of practice in a suitable format for people lacking capacity and for independent advocates. Of course, I appreciate that the hon. Member for Chesterfield wishes to remind us that people who lack capacity should not be overlooked in the code. It is also right that they should know what sort of behaviour they can expect from those who care from them; my hon. Friend the Member for Blackpool, North and Fleetwood mentioned the role of the independent consultee in that regard. 
 The hon. Member for Chesterfield will know that my Department is already quite sensitive to the issue, and that is why we published an easy-to-read version of the guide to the Mental Capacity Bill. It condenses the key aspects of the Bill into 21 pages. On the Department for Constitutional Affairs website, he will see a whole range of publications aimed specifically at those with learning disabilities. Tapes and CD-ROMs are also available. We want to continue that good practice and do exactly what my hon. Friend the Member for Blackpool, North and Fleetwood said, but we have not done that yet with the draft code, for the very reason that it is a draft. It is a work in progress, and it would not be right to go down that road at this stage. 
 As for existing advocacy groups, it is difficult to take the issue forward as the hon. Member for Chesterfield suggests, partly because there are so many different groups. He is aware that there are many types of advocate, such as citizen, peer, and crisis. We have talked about that; there are lots of 
 different groups, including self-advocacy groups. It would be difficult to speak to all of them in the code, and even if we could, I suspect that some would not want to listen, because they prize their independence so highly. 
 I also remind the hon. Gentleman that the only statutory definition of independent advocacy is in the Health and Social Care Act 2001, but that relates to a particular form of advocacy—the advocacy in the independent complaints advocacy services, of which I am particularly fond, as I set them up when I was a Minister in the Department of Health. Those issues cause us some difficulty, and I hope that, on the basis of what I have said, the hon. Member for Daventry will withdraw his amendment.

Tim Boswell: I am grateful to the Minister for his response. It was, on the whole, encouraging and consistent with the Department's initiative in publishing the code, which has been valuable to the Committee. There is no doubt about his good intentions.
 The only slight warning that I offer the Minister is that there are two layers of potential misinterpretation. The first is the transition from lawyerly language to layperson's language. That might, for example, might centre around the use of the word ''reasonable'', which may mean something different to the Minister, as a 
 lawyer, from what it means to Committee members such as I, who are not lawyers. 
 Secondly, there is the transition to a version for people with learning difficulties who require further abridgement. From the occasions on which I have attempted to distil information such as election material, I know how difficult it is to do, but also how important and useful it sometimes is in clarifying concepts. I encourage the Minister to carry on with that, and to make sure that what is proposed is accessible, both in the language used and in the convenience of the format in which the material is assimilated. We encourage him to do that, and will welcome it when he does. In light of the assurances that he has given, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Amendment proposed: No. 195, in 
clause 40, page 22, line 14, at end insert— 
 '(g) for the guidance for people acting as independent advocates for the purposes of sections 35, 36 and 37.'.—[Mrs. Humble.]
 Question, That the amendment be made, put and negatived. 
 It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
 Adjourned till this day at half-past Two o'clock.